dissenting.
In Mauch v. Manufacturer’s Sales & Service, Inc., 345 N.W.2d 338 (N.D.1984), a key issue was the trial court’s refusal to give a requested instruction on strict liability failure to warn in addition to its instruction on negligent failure to warn. The trial court viewed the two as indistinguishable and decided that instructing on both would serve only to confuse the jury. This court reversed, holding that there was a difference between a negligent failure to warn and a strict liability failure to warn and that a strict liability instruction should have been given. So far, so good. Unfortunately, this court also held that not only a strict liability instruction, but also, a negligence instruction must be given in failure-to-warn cases. That was unfortunate in my view and it is that aspect of Mauch — that both instructions should be given, that I think is untenable and should be overruled.
While conceding that the distinction to be drawn between a negligent failure to warn and a strict liability failure to warn “might seem illusive,” we fatefully decided to enshrine that illusiveness only because under strict tort doctrine, “the emphasis is on the product,” while under negligence, “the emphasis is on the reasonableness of the conduct of the manufacturer.” Id. at 346. For this theoretical justification, we relied on Frumer and Friedman, Products Liability § 16A[4][f] at 3B-156 (1983).
In my view, Frumer and Friedman’s rationale is not compelling because it fails to incorporate the reality that negligence and strict liability overlap on the issue of duty to warn. Hauenstein & Loctite Corp., 347 N.W.2d 272 (Minn.1984); see Bilotta v. Kelley Co., Inc., 346 N.W.2d 616, 623 (Minn.1984); see also Holm v. Sponco Manufacturing, Inc., 324 N.W.2d 207, 214-15 (Minn.1982) (Simonett, J., dissenting). Their rationale is not pragmatic.1
*522While strict liability, as a general proposition,, may be characterized as focusing on the product, that is, whether the product is unreasonably dangerous and defective, rather than on the conduct of the manufacturer, the duty to warn case necessarily implicates a manufacturer’s conduct over and above the dangerousness of the product because it is the manufacturer’s conduct of failing to prepare an adequate warning, that renders the product dangerous. Bilotta v. Kelley Co., Inc., supra; Nigh v. Dow Chemical Co., 634 F.Supp. 1513 (W.D.Wis.1986); see also Smith v. E.R. Squibb & Sons, Inc., 405 Mich. 79, 273 N.W.2d 476 (1979). Dean Keeton puts it differently:
“[A] product is unreasonably dangerous at the time of sale if the ordinary man (sic), knowing the risks and dangers actually involved in its use, would not have marketed the product without supplying more information about the risks and dangers involved in its use and ways to avoid harm therefrom.” Keeton, Products Liability — Inadequacy of Information, 48 Tex.L.Rev. 398, 403-04 (1970).
Thus, some sort of “reasonable person” standard inheres in the issue of a failure to warn and even if that reasonable person or “ordinary man” is not the defendant, but the ideal manufacturer who knows the risks of distributing the product without a warning, the concept of “reasonable person” or “ordinary man” looks, sounds and smells like that traditional negligence concept. Indeed, in duty-to-warn cases, the emphasis upon the nature and scope of the warning has led to a convergence of the functional identities of strict liability and negligence. Kidwell, The Duty to Warn: A Description of the Model of Decision, 53 Tex.L.Rev. 1375, 1378 (1975).
Whether or not this court was theoretically correct in distinguishing between strict liability and negligent failure to warn because of the differing emphasis of each, I sympathize with the frustration of the trial judge in Nigh v. Dow Chemical Co., supra at 1517:
“The Court will leave the task of distinguishing between negligence and strict liability in the duty to warn to those who count angels on the heads of pins.”
It cannot be seriously questioned that in practice it is difficult to distinguish between the strict liability duty to warn and the negligence duty to warn not only because a manufacturer’s duty to warn is defined in terms of reasonableness (Hauenstein v. Loctite Corp., supra), but also because there lurks within strict liability the familiar negligence element of foreseeability that a product will be unreasonably dangerous in its foreseeable use by foreseeable users without a warning. Id., see Gracyalny v. Westinghouse Electric Corp., 723 F.2d 1311 (7 Cir.1983) (applying Wisconsin law). The genius of the law is its melding of theory and practice. If, in practice, the application of theory to the facts creates contradictory verdicts, complicated verdict forms with divergent defenses for each theory, and tortuous instructions, any of which would challenge the intellectual prowess of tort professors, let alone lawyers, judges and juries, I say we should take our lead from that movie hero of a few years ago and at least figuratively shriek through open windows: We’ve had enough.
Mauch may merit an A on a tort exam. One may even agree with its theoretical syllogism. However, Mauch has failed in the courtroom. See e.g., Hoerr v. Northfield Foundry and Machine Co., 376 N.W.2d 323 (N.D.1985), and the majority opinion in this case.
Stare decisis is a policy grounded on the theory that when a legal principle is established, “rights may accrue under it and security and certainty require that the principle be recognized and followed thereafter even though it later be found to be not legally sound.” Otter Tail Power Co. v. Von Bank, 72 N.D. 497, 8 N.W.2d 599, 607 *523(on petition for rehearing) (1942). However, the rule is not “sacrosanct.” Id.; see also State v. Cummings, 386 N.W.2d 468 (N.D.1986). While Justice Blackmun cautioned, in overruling National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), that “We do not lightly overrule recent precedent,” Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 557, 105 S.Ct. 1005, 1020, 83 L.Ed.2d 1016 (1985), he proceeded to do exactly that.
I would embrace the Minnesota Supreme Court’s example of merging strict liability and negligence in cases of failure to warn. Hauenstein v. Loctite Corp., supra; see Bilotta v. Kelley Co., Inc., supra; Kallio v. Ford Motor Co., 407 N.W.2d 92 (Minn.1987). See generally Steenson, Products Liability Law in Minnesota: Design Defect and Failure to Warn Cases, 14 Wm. Mitchell L.Rev. 443 (1988). In particular, I am persuaded by Justice Simonett’s special concurrence in Bilotta v. Kelley Co., supra at 625-27. He concludes that the distinction between strict liability and negligence may be significant to the trial court in deciding whether the case goes to the jury, “but once the case is submitted, insofar as the jury is concerned, any distinction between strict liability and negligence is nonexistent where the claim is for design defect or failure to warn_” (Citation omitted.)
Justice Simonett suggests that to avoid the risk of perverse verdicts, the issue of failure to warn should be removed from any strict liability defective condition instruction and be submitted as a separate negligence issue. Bilotta, 346 N.W.2d at 626 n. 1. I would agree with this suggestion or with the rule that plaintiff may elect to submit to the jury in a failure-to-warn case either a strict liability or negligence theory, whichever, under the facts of the particular case, will be more productive from the plaintiff’s perspective. That follows the Minnesota Supreme Court’s holding in Hauenstein v. Loctite Corp., supra at 2752 and that is the direction I would like to see our court take in order to clear the thicket in which we find ourselves and from which trial courts must disentangle themselves in all failure-to-warn cases.
Mauch has led us to the intractable dilemma exposed on page 515 of the majority opinion regarding the impossibility to combine strict liability and negligence into a single verdict form to simplify and, indeed, to make comprehensible, the law to the jury. The majority concludes that “there is no logical method to combine fault assessment under the two theories without effectively blending them to the point of destroying their functions as separate theories of recovery.” I commend to the majority Justice Holmes’ caveat that the life of the law is not logic, but experience. Based upon experience (see Andersen v. Teamsters Local 116 Building Club, Inc., 347 N.W.2d 309 (N.D.1984); Hoerr v. Northfield Foundry & Machine Co., supra), I do not place the same value as does the majority in preserving these separate theories of , recovery for the sake of logic. Apparently, neither does the legislature. See NDCC § 32-03.2-01. I do see great value in presenting to the jury the issue of failure to warn in a manner that deemphasizes doctrinal labels, obviates confusion and is comprehensible, consistent and conducive to rendering justice.
*524I would reverse and remand for a new trial. I therefore respectfully dissent.
MESCHKE, J., concurs.. Webster’s Third New International Dictionary (1971) defines pragmatism as "emphasis in philosophical thought on the application of ideas or the practical bearings of conceptions and be*522liefs; an American movement in philosophy founded by Peirce and James and marked by the doctrines that the meaning of conceptions is to be sought in their practical bearings, that the function of thought is as a guide to action, and that the truth is preeminently to be tested by the practical consequences of belief."
. In Hauenstein v. Loctite Corp., 347 N.W.2d 272, 275 (Minn.1984), the Minnesota Supreme Court held:
"We hold that a manufacturer’s duty to warn in strict liability cases extends to all reasonably foreseeable users. We therefore conclude that the jury’s finding that Loctite was negligent cannot be reconciled with its finding that the product was not defective. Inherent in this case is the problem of mixing ordinary negligence and strict liability where the only basis for liability is failure to warn. To avoid this problem in the future, we hold that hereafter, where a plaintiff seeks damages for both negligence and strict liability based solely upon failure to warn, the plaintiff may submit the case to the jury on only one theory. The plaintiff can plead and prove at trial either or both theories, but by the time the parties rest, the plaintiff must announce whether the case will be submitted to the jury on negligence or strict liability.”
See also Germann v. F.L. Smithe Machine Co., 395 N.W.2d 922, 926 n. 4 (Minn.1986) where the court announced that it “has adopted the position that strict liability for failure to warn is based upon principles of negligence.”